Nashville Lawyer Blog

Over the past couple of weeks I have been participating in a variety of activities, such as horseback riding and flight lessons, and have noticed they all have on thing in common: waivers of liability. A waiver of liability is a form used by organizations/individuals as a means of protecting themselves from being held legally accountable for any injuries resulting from the use of their product, equipment, or services. An assumption of risk is the premise under which a waiver of liability functions. Therefore, an individual is aware of the potential risks involved in doing or not doing something and forfeits their right to take legal action to recover damages in the event they are injured; hence, the individual is assuming the risk. However, it is important to know that there are situations in which a waiver of liability is not enforceable.

The enforceability of a waiver can first be determined by analyzing the language of the waiver itself. A reasonable and adequate warning must be provided that clearly and unambiguously expresses the intent of the parties. Any ambiguity pertaining to the extent of the release is construed against the drafter. Moreover, the waiver must be properly worded in compliance with the law and be fashioned so that an ordinary person, untrained in the law, could understand. This requires a high degree of clarity and specificity in the wording of the document. In addition, the location and size of the exculpatory language is crucial to the enforcement of a waiver of liability. A separately titled subsection that is easily noticeable and printed in 10-point font or greater is generally accepted as valid.

Another reason a waiver of liability may be unenforceable is if an organization or individual attempts to contract away a statutory duty. This duty is partly derived from a state's public policy and varies from one jurisdiction to the next. Likewise, some states prohibit the use of waivers in conjunction with certain sports or activities. Vermont for example, has a public policy exception for ski areas and other recreational facilities that are open for public use. In these states, providers of the select services are statutorily prohibited from avoiding liability for ordinary negligence. Furthermore, some state laws bar the use of waivers for personal injury entirely. Under Tennessee law, one may contract away liability for negligence, however, two exceptions exist: (1) a party cannot contract away liability if the duty is a public one and (2) one may not contract away liability for willful or gross negligence.

Gross negligence is distinguished as an extreme form of negligence in which one fails to use the care that even a careless person would use. Reckless misconduct is regarded as a more severe form of gross negligence, while willful and wanton misconduct is considered the most severe form of negligence. Waivers of liability are not intended to guard companies that are grossly negligent in maintaining their property or equipment, or are reckless in how their property or equipment is used. Therefore, when I took my flight lesson, the company was required to maintain their equipment to ensure the planes are suitable to be flown. If I had been injured during the lesson as a result of negligence in maintaining the plane, the company may have still been held liable for my injury, despite my signing a waiver of liability.

Moreover, many states hold that waivers between parties of unequal bargaining power are unenforceable. Such an instance would be an adhesion contract, where a take it or leave it situation is created. This is often viewed as restricting one party's opportunity to bargain and is unenforceable if the contract is oppressive or involves an essential service. However, recreational providers are generally not viewed as having greater bargaining power as the participant is free to not sign the waiver and take their business elsewhere or not participate in the activity. Employer-employee contracts, however, are seen as existing between parties of unequal bargaining power as the livelihood of the employee is involved. Although employment waivers have been enforced in instances where the work was part time or for a very small salary.

In conclusion, it is important to always be aware of what you are signing and the laws of the state that you are in. While some states prohibit the use of waivers, there are many that do not. In fact, some states have even held that waivers promote public policy by making providers comfortable in allowing public participation in recreational activities. However, if you do find yourself in a situation where a waiver of liability is unenforceable, it is a sure way to guarantee that tortfeasors are not allowed to avoid responsibility and you are properly compensated for any injury.

Sources:
Why a Waiver May Fail - Public Policy

Waiver of Liability

Signing Away All Your Rights? Not Always...

Posted By: Eston Vance Whiteside

Whether its being rear ended during the early morning rush hour or straining your back while on the work site, accidents happen and knowledge is one of the most important tools you can have when misfortune strikes. Most people would agree that the most difficult and confusing aspect of being injured or involved in an accident is managing the insurance claim. The adverse nature of an accident alone can be more than some can handle, therefore even a basic understanding of how the insurance system functions can prove to be significant in settling your claim.

As the representative of the insurance company, the claims adjuster is the person who makes the decisions that ultimately decide how much the insurance company gains or loses. Therefore, it should be no surprise that they are well trained to ensure the insurance companies receive the maximum benefits while providing you with the minimum. One of these methods is by conducting a "friendly" phone call to gather information about your claim. The adjuster may use this information to make suggestions they are not qualified to make, such as medical treatment decisions. A person who has been injured in an accident should only base their choice of medical treatment on the opinion of their doctor to ensure they receive the appropriate and warranted care.

Moreover, it should also be known that any statement or prior medical condition may be used by the adjuster to your disadvantage. As a part of their investigation, an adjuster will often phone you and maintain that you answer questions pertaining to your claim, such as the facts of the incident, the degree you were injured, and information about any past claims you might have made. It is not uncommon for the adjuster to fail to inform you that any answers you provide may be used in a manner that decreases your claims worth. Likewise, the discovery of previous injuries or pain may also be used to diminish, if not eliminate altogether, the value of your claim.

Further, there are three issues adjusters will examine when investigating any medical treatment you receive for your injury, and the presence of such can be used to reduce your claim's overall worth. The issues that would prove most detrimental to your claim are failure to treat immediately, inconsistency of treatment history, and gaps in treatment. Understand that the insurance company will analyze every medical decision you make or don't make in regard to your injury, thereby making manner of treatment a significant aspect of your claim.

In addition, it is crucial to evaluate your claim fully and consider all your options. As with most things in life, the quick and easy way is not always the best way. Always consider how an accident could affect you in the long term, as well as the short term. Factors such as losing one's job because of a settlement, one's employer going out of business or being sold, and the duration/type of medical coverage for your injury are important issues to consider.

While the advice provided above is not intended to be rigorously followed as an inflexible standard, it nonetheless shows the significance and value of understanding the insurance claims system and being prepared. By taking measures to be confident and ready in the event of an accident it becomes more likely that you will receive the relief you deserve. So the next time an accident occurs will you be ready?

Sources
Five Secrets Insurance Companies Dont Want You To Know

Posted By: Eston Vance Whiteside

David and Ben Raybin authored an article that was recently published in the Tennessee Bar Journal on this topic. Such article highlights the many concerns that attorneys should have about their client having a facebook, my space, twitter, etc. account. Individuals tend to post significant personal information on their social media accounts, which can be accessed by investigators, prosecutors, opposing attorneys, and the other party, etc.

To read the full Tennessee Bar Journal Article Click HERE

Lead counsel, David Raybin was interviewed by Nashville media in response to statements made by a Tennessee Department of Corrections' spokesperson who said "there were no violations of policy" regarding the inmate's cell extraction. Prison officials had previously reported that the 33 year old Toll had died of natural causes, but the State Medical Examiner ruled the death a homicide. The inmate was believed to have died from "suffocation" and "asphyxia during physical restraint." The Complaint alleges Civil Rights violations actionable under Section 1983. A copy of the Complaint appears here. Complaint TOLL.pdf

The Complaint alleges, in part:
"The Cell Extraction Team Defendants, clad in black riot gear-style uniforms and armed with Taser guns and a Taser shield, opened Charles Toll's cell, shackled him, and dragged him out with his face on the ground. Toll repeatedly told the Cell Extraction Team Defendants that he could not breathe while they were holding him down with the Taser shield. Despite being told by Toll that he could not breathe, the Cell Extraction Team Defendants did not relent but instead increased the ferocity of their sadistic attack. The Cell Extraction Team Defendants used a Taser devise to repeatedly shock Toll with electricity. They then dragged him facedown out of the pod and into the prison "yard," with a deliberate intent to escape the view of other inmates. The Cell Extraction Team Defendants sadistically and maliciously pressed a Taser shield on Charles Toll's back for more than ten minutes while several members sat on the Taser shield, electrocuting and suffocating him. As a result of the Cell Extraction Team Defendants sitting on him for approximately ten minutes and giving him Taser shocks, Charles Toll exhibited audible gasping and labored, irregular breathing for several minutes before becoming unresponsive. As a result of the assault by the Cell Extraction Team Defendants, Charles Toll sustained numerous abrasions to his face, knees, and wrists, and ultimately suffered an excruciating death."

Nashville CBS Affiliate Channel 5 recently reported on the ongoing investigation into the death of Charles Toll, a prison inmate at Nashville Tennessee's Riverbend Maximum Security Institution. Prison officials had previously reported that the 33 year old Toll had died of natural causes, but the State Medical Examiner ruled the death a homicide. The inmate was believed to have died from "suffocation" and "asphyxia during physical restraint." Click here for a link to Channel 5 story.

LEGAL FACTS ABOUT THE NASHVILLE, TENNESSEE FLOOD OF 2010
Now that the flood waters are receding, we as Tennesseans have to start dealing with the aftermath of the greatest natural disaster to ever hit Middle Tennessee. As we assess the damage, we are encountering problems from places we never even considered- our insurance companies.

Many Tennesseans, being forced to confront dramatic life-altering events, are trying to pick up the pieces. Unfortunately, a large number of people are contacting their insurance companies, only to find they are not covered for water damage caused by the storm. A great many homeowners wrongly thought they were protected, only to find their insurance agent neglected to sell them the proper and necessary insurance.

What are you going to do if you are not covered from water damage? Did your insurance agent fail to tell you about flood insurance? Did he or she explain the difference between damage from flood waters and damage from surface water? Did he or she tell you that you could have been protected from the storm? If he did not, and you are damaged as a result, you may have recourse in court.

Continue reading "Did your Insurance agents do all they could to get you flood insurance before the Nashville flood?" »

A Nashville resident, Anthony McCoy, recovered $95,000 from Metro in a highly publicized lawsuit covered by the Tennessean. Mr. McCoy suffered significant dental damage when a Metro Sheriff's Deputy forceably ripped his cemented dental grill out of his mouth.

Read the entire article here:
http://www.tennessean.com/article/20100316/NEWS03/3160334/Ripping+grill+off+teeth+of+man+in+custody+costs+Metro++100+000For questions about this or any legal matters, please contact David Raybin or any of the attorneys at Hollins, Raybin & Weissman, PC at draybin@hwylaw.com or 615-256-6666.

The attorneys and staff at Hollins, Raybin & Weissman, PC congratulate David Raybin for his great work on behalf of an incarcerated man whose dental grill was forceably ripped out by a Sheriff's deputy.

The incident in November started with McCoy's arrest after failing to pay child support. A sheriff's deputy told him to remove the gold grill attached to his teeth. But when McCoy, 31, told the deputy it was permanently attached, Lt. Tanya Mayhew stepped in. She put on a rubber glove, stuck her hand in his mouth and yanked out the gold jewelry grill cemented to his teeth.

Mr. McCoy had the enamel on his front four teeth ripped away and was denied proper medical treatment afterward. He asked to see a dentist but was given Tylenol instead. It took 10 days locked away before the dentist came.

The incident left his teeth disfigured and needed at least $10,000 in dental work. Metro lawyers have scrambled to reach a $95,000 legal settlement, including pain and suffering.

Many attorneys would likely avoid representing an individual under such circumstances. However, at Hollins, Raybin & Weissman, we believe justice is not reserved only for the rich. Kudos to David Raybin for exemplifying this behavior.

David may be reached about personal injury, criminal defense, or any other legal matters at draybin@hwylaw.com or 615-256-6666.

In Nashville, Tennessee on Thursday morning, a suspected drunken driver crashed into a police car after hitting several other cars. The police were called by a woman who said she was the victim of a hit and run. When they pulled the suspect over, he backed up and hit the police cruiser. Fortunately the officer was not hurt.

While this sounds like news of the weird, from the personal injury lawyer's point of view, two interesting points are raised. First, if you are involved in a car accident, or any accident for that matter, get thoroughly checked out by a doctor before declaring you are not injured. Ofttimes, it takes a day or two before you become aware you are hurt. It certainly doesn't help your case to have a premature statement that you suffered no injuries.

Second, in the case of a drunk driver, the alcohol is almost certain to be an aggravating factor. This subjects the drunk driver to a claim for punitive damages. Punitive damages in Tennessee are appropriate in the case where the defendant acts intentionally, maliciously, fraudulently, or recklessly.

If you have any questions about this or any other personal injury matter, please feel free to call Dave Weissman at 615-256-6666.